SPEEClx 


OF 






CULLEN, OF 


DELAWARE, 


ON THE 


KANSAS CONTESTED ELECTION; . 

DELIVERED 


IN THE HOUSE OF REPRESENTATIVES, MARCH 7, 1856. 


WASHINGTON: 

PRINTED AT THE CONGRESSIONAL GLOBE OFFICE, 

1856 . 





KANSAS CONTESTED ELECTION 


Mr. CULLEN said: 

Mr. Speaker: I propose to make a few re¬ 
marks in relation to the matter now under con¬ 
sideration by this House. I may say, in the 
beginning, that I feel no little regret that, in the 
discussion of the legal questions before us,—who 
are now sitting as a high court of justice to 
administer the law of the land, and decide the legal 
rights in conti'oversy—that so much feeling and 
party spirit should be excited in the debate, all 
of which ought to be decided and settled fairly and 
justly, according to the requirements of the law, 
after calm, serious, and deliberate advisement. 

I do not propose, Mr. Speaker, to enter into a 
discussion of the slavery question, or any other 
matter in relation to that exciting subject which 
has been referred to in this debate, but to confine 
myself strictly to the matters contained in the 
reports of the Committee of Elections, now before 
the House—the true and only questions now prop¬ 
erly before us. We are called upon to decide the 
case of the validity of the Kansas election, at 
least that branch of it which is referred to in the 
reports of that committee; and we must decide 
it as a court of law whose decision is without 
appeal) final and conclusive. Whether that de¬ 
cision be right or wrong, no other tribunal under 
heaven can reverse or annul our judgment in the 
matter, or vacate any of our decisions; and in all 
the questions arising in the case before us, we 
must be bound by the rules and principles ^yhich 
regulate and govern all our courts of justice in 
their proceedings. We are as much tied down 
by, and confined to, the rules of law and the prin¬ 
ciples of evidence as any other court of justice 
ever can be in the decision of any case before 
them. This is a case in which individuals—the 
parties before us—claim certain rights, of which, 
f)y the Constitution of the United States, this 
House is the sole and exclusit'e judge; and all the 
parties before us have the undoubted right to be 
fairly and fully heard by us, before we can safely 
decide between them who is right and who is 
wrong. The Constitution of the United States 
has made this House tiie Judges of the election 


and qualifications of its members, and as such we 
are to decide the important questions now before 
us. Let us now look at it, and see where we 
are and what we are, coolly, calmly, and delib¬ 
erately, without prejudice, without party feeling; 
and I think we shall then have no difficulty in 
coming to a correct conclusion upon all the ques¬ 
tions now before us. 

It appears, from the report of the Committee 
of Elections, and the accompanying papers now 
printed and laid upon our desks, that General 
Whitfield claims to be the lawfully-elected Dele¬ 
gate from the Territory of Kansas; that is the 
claim upon one side. He claims that he has been 
duly elected by virtue of the territorial law passed 
by the Legislature of that Territory at an election 
regularly held; he produces his commission, duly 
executed and sealed, from the Governor of that 
Territory, as the legal evidence of that election; 
he presents prima facie evidence of his right and 
title to a seat here as such Delegate—being a reg¬ 
ular, duly-authenticated certificate of election in 
proper form from the Governor of the Territory. 
Such certificate from the Governor of the State 
is the only evidence which any of the members 
of this House over present upon the taking of 
their seats in this Hall; and General Whitfield 
has been admitted to a seat upon this floor as the 
lawful Delegate from the Territory of Kansas. 
Governor Reeder presents himself before us and 
contests that claim and membership of General 
Whitfield, alleging that General Whitfield is not 
the rightful Delegate; that, as such, he has never 
been lawfully chosen or elected; that, if he ever 
was elected, such election was without the author¬ 
ity, concurrence, warrant, or permission of any 
law or statute, either of Congress or of the Ter¬ 
ritory of Kansas, without which General Whit- 
j field cannot sit here as a Delegate from a Terri¬ 
tory which never sent him. In other words, 
Governor Reeder contends that the sitting member 
from Kansas is a mere usurper, claiming and exer¬ 
cising rights and privileges to which he has no 
lawful title, and therefore ought to be ousted and 
removed from his present station in this House. 







Governor Reeder has presented his memorial 
to this House, in and by which he claims to be 
the only true and lawful Delegate from that Ter¬ 
ritory. These are tlio questions ultimately to be 
decided by us, and which are now brought be¬ 
fore us by the report of the Committee of Elec¬ 
tions, not lor present decisv^, but for the pur¬ 
pose of asking from this Hiiji^se the power and 
authority to issue one or mbre commissions, 
directed to certain commissioners, authorizing and 
requiring such commissioners to investigate the 
facts in relation to certain elections held in the 
Territory of Kansas, by virtue of which each of 
the said parties before us claim each for himself 
that he was fairly elected as the lawful Delegate 
to represent the people of that Territory in this 
House during the period of the Thirty-Fourth 
Congress. Shall such commission issue is now 
the material question to be decided by us; and if 
to issue, what is the nature of the evidence to be 
taken; to what points confined; whether ad libi¬ 
tum, at the discretion of the commission or com¬ 
missioners, or the contestant; whether to prove 
by parol evidence that a public law of the Terri¬ 
tory, enacted under and by all the forms of legisla¬ 
tion known to our Constitution and laws, can be 
impeached for fraud, bribery, corruption, or for 
any other matter or thing extraneous frOm, and 
not appearing upon, the face of the statute itself, 
nor on the journals of the legislative body or 
bodies which enacted it, nor from any oilier j 
record; whether witnesses shall be examined in j 
relation to the election of the members of the 
Territorial Legislature, which passed the statute 
in question, was or was not valid; whether pub¬ 
lic records shall be subjected to an entire novel 
and unprecedented test of authenticity ? These 
are questions which it now becomes us to decide 
and determine. For myself, I must say that, 
being fond of the old law and the long-settled 
principles of evidence, 1 greatly prefer the old 
landmarks of property and rights as held and 
practiced by all other courts Avhere justice is 
judicially administered, to all such untried, hasty 
innovations upon legal practice. 1, for one, can¬ 
not give my assent to the changing of the old 
and well-estal)1ished laws and rules of evidence 
which the generations before us have always 
looked upon as parts and parcels of those insti¬ 
tutions of our revered forefathers, who lived 
and died contented with what they gave and be¬ 
queathed to their children. 

Now, Mr. Speaker, let us see what in reality 
does this proposition, coming from the Commit¬ 
tee of Elections, recommend to us; let us see 
whether it is not an effort made to draw us from 
the true, just, and legal course which we ought 
to follow, and to introduce into the case new prin¬ 
ciples of evidence which are wholly irrelevant— 
which have no connection with the issue between 
the parties; and whether that is not just such a 
course as would not be tolerated or even attempted 
in a court of justice, composed of judges learned 
in the law. The committee ask for leave to send 
for persons and papers, to examine witnesses 
ad libit um, to examine citizens of the State of Mis¬ 
souri and everywhere else they may choose, in 
and out of the Territory of Kansas, in order to 
settle a question which must be decided on other 
principles of evidence, such as pertains to the 
proof of statutes, public records, and other writ- 


! ten or printed matter. Here is an act of the Ter- 
I ritorial Legislature of Kansas, plain upon its face, 
authorizing an election to be held in that Terri¬ 
tory at a certain time, which election was held 
according to the command of the act prescribing 
it. But the contestant alleges that this act of 
the Kansas Legislature was void and was of no 
I {effect; not from any defect upon the face of the 
I statute itself, but for extraneous facts, which he 
says make the statute void. Now, sir, the first 
I question which arises, and which we are to de- 
I termine, is, what is a public law ? Is it nothing 
more than a printed paper Sir, it is of a f.u* 

I higher and greater import. It is one of the acts 
' of sovereignty. It has the high privilege of a 
j peculiar right of trial only given to public records, 

I of which it is one. Yes, it is a record, and a 
I public record. And what is the law relating to 
; records ? How are records to be tried Are they 
1 to be tried as issues of fact by or before a jury ? 
i No, sir; they are to be tried by their own evi- 
I dence. They are to be tried on inspection by 
' the court; and whenever a record is averred in 
j jdeading in a court of justice, to which the party 
I denying it pleads nuDiefrccorj,—which is theonl}’’ 

I plea which can put in issue the question of record 
I or no record,—such issue, thus joined, is to be 
! tried and determined upon, not by a jury, but by 
I the inspection of the court, -who determine and 
decide the question without the intervention of 
the jury, and without any other proof than that 
of inspection. It is unnecessary to argue tliis 
common principle of law, which is so plain that 
every lawyer admits and acknowledges it as so 
fully settled that it is not again to be questioned. 
None can question it. 

Well, sir, we are sitting here as a court, from 
whose decision there is no appeal—no writ of 
error can be taken; against our decision there is 
no redress, no remedy, let our decision be ever 
so wrong or unjust. Why, sir, are we to hay 
aside all the well-established rules of law and of 
evidence, and throw the law into confusion and 
doubt? Shall wo reject all precedent as well as 
law, all rules of evidence, and attempt to make 
ourselves wiser than the law and all who have gone 
before us ? Why should we say that eA'erything is 
admissible in evidence before us which the courts 
would reject; and say that a new species of 
evidence, never heard of in a court of law, is re¬ 
quired to establish the truth and verity of a public 
I record ? I apprehend, Mr. Speaker, that we are 
bound by the principles of law and the rules of 
evidence; that we, of ourselves, without the con¬ 
currence of the Senate, cannot change or alter 
either; and that a public statute of a Territorial 
Legislature is, like all other statutes and records, 
to be tried on its own inspection. Is that a pub¬ 
lic statute of the Territory ? Is it a public record ? 
That is the question for us to decide, as a court, 

! upon inspection; it is not an issue for a jury to 
! try. I will ask gentlemen if they ever saw in a 
! law-book a plea averring extraneous matters to 
I vacate or set aside a public law? No such pre- 
I cedent was ever heard of. Such a case cannot be 
I found in the books. Can a man, in an}''case, 
j aver any fact against a record, when the record, 
on its very face and attestation, imports verity 
and truth ? It is so with this act of the Legisla¬ 
ture of Kansas, now in question. We must judge 
of it upon its face—not hear parol evidence "to 























5 


\ 


correct, vacate, alter, or annul it, as some here seem | 
to think. A territorial act of the legislative body 1 
comes to us, like all other public records, clothed ! 
with all the forms of law. We are bound to look ! 
at it, to examine it, and to decide whether it be or j 
not a true record from inspection, and not from 1 
oral proof. Hov/ can witnesses from Kansas, j 
Missouri, or any other place, throw any light j 
upon this subject? They cannot. We are con-j 
stituted the judges; we are to decide whether | 
there is or is not such an act of liiis Kansas Leiris-' 
ature. 1 put the question to every gentleman j 
here, does Governor Reeder, the contestant in ' 
the case, deny that the Legislature of Kansas | 
over passed such an act ? No, sir; he admits ' 
that they passed it; but he says it is void—void ! 
not by reason of any defect in its attestation, < 
nor upon its face; but that the Legislature which | 
passed it were not the true and lawful represent-1 
atives of tiie people of Kansas. If void upon | 
its face, or defective in its attestation, wo must | 
disregard it, and say there is no such record, no | 
such statute; but if, on the contrary, upon its 1 
face it appears to be a valid law, not inconsistent 
with the Constitution of the United States nor 
the organic law in relation to the admission of 
thai Territory, we must say that it was enacted by 
competent authority—that it is valid; and where 
can we find authority or precedent warranting us i 
to go beyond that record, and say that that act is | 
void and of no effect? 

Now, sir, there is another point in this case. 

It is insisted on by Governor Reeder that the I 
Legislature which enacted that law was not duly 
(dected, and that, therefore, they had no right to 
pass any such law. If so, is that right to be 
established or disproved by parol evidence ? Can 
any witness in Missouri or elsewhere throw any | 
light on the subject? We must recollect that we j 
are sitting here as a court of justice, and that we | 
are bound by the law and rules which regulate | 
courts. Can, then, any witness be admitted to | 
testify as to any facts which will go to gainsay, i 
rebut, or destroy that act of the Territorial Legis -1 
lature ? Such evidence is inadmissible in a court i 
of justice, and must be- inadmissible in the face { 
of the House of Representatives, consisting of j 
gentlemen of learning and intelligence. Are we 
the constitutional judges whether, as is alleged, 
the members who enacted that law were not law¬ 
ful members of the legislative body—in other 
words, that they were usurpers, not being duly 
elected ? Have we the right to determine that 

Q uestion? Has not that question been already 
ecided and passed upon by another tribunal, 
who had the rightful jurisdiction to determine it? 
Did not Governor Reeder decide that matter him¬ 
self, he being the only judge? The organic law 
of the Territory conferred upon the Governor the 
power to order elections and to call the Legisla¬ 
ture together. The elections were held, and the 
Legislature was convened. The law gave to tliat 
body—A. H. Reeder, the contestant, then being 
the Governor—the usual exclusive jurisdiction 
over the qualifications of its members. The Gov¬ 
ernor was the exclusive judge of those matters, 
so constituted by the organic law of that Terri¬ 
tory; he was the only tribunal who could decide 
that question; and he did decide it, by giving to 
the members the official commission as such mem¬ 
bers, and sending to them his official messages 


from time to time. Governor Reeder at first set 
aside the elections of some, commissioned others, 
and new elections weri; ordered for members in 
place of those rejected by him as not elected. The 
body thus commissioned by him assembled. 
They, the members, held their commissions from 
Governor Reeder—he gave to them the evidence 
of their membership. Governor Reeder recog¬ 
nized them in the most public and solemn man¬ 
ner by sending to them his executive message, 
do permit Gov(M’nor Reeder now to deny the 
validity of that legislative body, the members 
of whidi were commissioned by him in his official 
capacity as Governor of the Territory, would be 
to permit a man to take advantage of his own 
vyrong,to impeach himself, and to deny and nul¬ 
lify his own solemn acts, even if we admit that 
he is not estopped from denying his own acts, 
nor to contradict the public record of his own 
commissions, which he is now attempting to do 
against law and against right. 

Now, I will ask, when a court, having juris¬ 
diction, once decides a matter within that juris¬ 
diction, w'hether that decisive judgment and ad¬ 
judication are not, as against the whole world, final 
and conclusive? Whenever a court has made a 
decision in a matter within their jurisdiction, such 
decision is by the universal consent of authorities, 
both in England and this country, always final 
and conclusive; all other tribunals are bound 
by it. None can again retry it, excepting in the 
case of a regular appeal to a higher tribunal. The 
only question in such cases is, had the original 
court jurisdiction ?—if they had, their decision is 
final and conclusive as against all the world, as 
well as parties and privies. When it is shown 
that it had jurisdiction—however illegal, unjust, 
or improper may have been its decision—that 
decision cannot be gainsayed nor reexamined, 
except, as before stated, upon an appeal to a 
higher tribunal having appellate jurisdiction. We 
are not a court of appeals; we cannot rectify 
or redress the errors of other courts. Our juris¬ 
diction in this case is original, not appellate. The 
decision of Gov'^ernor Reeder is final and conclu¬ 
sive, and must be received as such in every other 
tribunal when such questions may be incidentally 
brought before them. It is as a final determina¬ 
tion in all other cases in which it is brought in 
controversy. The Gov'-ernor of Kansas and the 
Legislature of Kansas havm the right to judge of 
the rights of their own members after Governor 
Reeder. They adjudged that they were all 
legally elected, and as such they continued to sit 
and hold their seats as members of the Kansas 
Legislature. And I ask the House, if we have a 
right to entertain an appeal from their decision, 
whether this case comes before us on a writ of 
error, or by way of appeal from the decision of 
Governor Reeder or the Kansas Legislature? And 
if we have not the right to investigate the matter dc 
novo, I will ask, then, if we are not bound by that 
rule of law which I have already quoted, and 
which is well known, that a decision by a court 
of competent jurisdiction is always final and con¬ 
clusive in all tribunals when such decision may 
incidentally arise, not only as against the parties 
and privies to the original trial, but as against 
the world? Are we to reverse these maxims of 
the law? Are we to set them at naught,and say 
that this Legislative Assembly of Kansas was 

















6 


not duly elected, not duly qualified, either for 
want of age, want of residence, or any other 
cause? We are bound to take the decision which 
has been made upon that subject by competent 
authority. We are bound to follow the precedent 
which Governor Reeder has set before us in 
recognizing this body as a lawful assembly, a 
lawful tribunal, authorized to legislate and pass 
laws not inconsistent with the Constitution of 
the United States nor the organic law of the 
Territory. We are bound to say that the acts 
passed by them are good and valid, unless on 
their fiice they appear to conflict with the Con¬ 
stitution of the United States or with the organic 
law of the Territory, which is not even pretended 
by any one—not even by Governor Reeder him¬ 
self. 

Is it true, that where an act is passed by a Legis¬ 
lature—where an act is passed by Congress, that 
any persons can aver in pleading that such act was 
passed by the fraud, bribery, or corruption of all 
or any of the members of the legislative body 
which enacted it? That such averment, by plea 
or otherwise, would be good or valid, even though 
true in substance and fact, I most respectfully 
deny; and I deny that any such principle, impeach¬ 
ing the motives of members, charging corrup¬ 
tion, or any fraud, can ever be plead against the 
validity and force of a public statute. No, sir; I 
will defy any man here to produce a single author¬ 
ity from any legal work, either a reporter or any 
of the elementary writers upon law, who has ever 
maintained so,dangerous a principle. When an 
act of Assembly of any of the States of this Union, 
or of Congress, has once been passed, and gone 
through all the forms of legislation, the motives 
of the legislators, however bad—whether influ¬ 
enced by bribery, fraud, orcorruption—however 
willful, can never be the subject of inquiry nor 
plea before a legal tribunal who are to determine 
its validity, force, and eflect. It is now well 
known and settled that in all cases where .the 
representatives of the people pass a bill into a law, 
no plea can be set up against such act that it is 
null and void because of the bribery, bad motives, 
or corruption of any or all of the legislators who 
passed the statute; and that such is no legal bar to 
Its force and validity as a law. Such a plea is 
almost wholly unprecedented in the whole history 
of jurisprudence in England and this country. 
You cannot find a single precedent for it in an}^ 
English book that I have ever been able to see. In 
this country I have been able to find but one single 
instance of any such pleading in our courts—in 6 
Cranch’s Reports, 87, in the case of Fletcher vs. 
Peck. The note of the case is this: in a contest 
between two individuals claiming under an act of 
a Legislature, the court cannot inquire into the 
motives which actuated the members of that 
Legislature. If the Legislature might constitu¬ 
tionally pass such an act; if the act be clothed 
with all the requisite forms of a law, a court 
sitting as a court of law cannot sustain a suit 
between individuals, founded on the allegation, 
that the act is a nullity in consequence of 
the impure motives which influenced certain 
members of the Legislature which passed the 
law. This was an action of covenant; and in the 
second count of the declaration, after stating the 
covenants in the deed, averred that, at Augusta, 
in the State of Georgia, on the 7th day of Janu¬ 


ary, 1795, the said J. Gunn,M. McAllister, and 
George Walko, promised and assured divers 
members of the Legislature of the said State, 
then duly sitting in General Assembly of the 
said State, that, if the said members would assent 
to and vote for the passing of the act of the said 
General Assembly, entitled as aforesaid, the same 
then being before the said General Assembly in 
the form of a bill; and, if the said^^bill should pass 
into a law, that such members should have a 
share of and be interested in all the lands which 
they, the said Gunn & Co. and their associates, 
should purchase of the said State by virtue of and 
under authority of the same law; and that divers 
of the said members to whom the said promise 
and assurance was so made as aforesaid, were 
unduly influenced thereby, and under such influ¬ 
ence did, then and there, vote for the passing of 
said bill into a law; by reason whereof the said 
i law was a nullity; and, from the time of passing 
I the same as aforesaid, was, ever since has been, 
and now is, absolutely void and of no effect w'hat- 
ever; and that the title which the said State of 
Georgia, in the aforesaid granted premises, at 
any time whatever, was never legally conveyed 
to the said P. by force of the conveyance afore¬ 
said. This plea to this count, which brought 
up the question as to the corruption and bribery 
of certain members of the said Legislature of 
Georiga, pleaded, protesting that the said G. 

I McAllister did not make the promises and assur- 
I ances to divers members of the Legislature of the 
j said State of Georgia, supposed in said second 
count, for plea saith that, until after the pur¬ 
chases by the said G., as mentioned in the said 
second count, neither he, the said defendant, nor 
the said P., nor the said G., nor the said Phelps, 
nor the said H., nor either of them, had any 
notice or knowledge that any such promises 
and assuirances were made by the said G. Mc¬ 
Allister and W., or either of them, to any of the 
members of the Legislature of the said State of 
Georgia, as is siqiposed by the said H. in his said 
second count; and this he is ready to verify. To 
this plea there was a general demurrer. The case 
was, in substance, that the Legislature of Georgia 
had made a grant of certain lands to certain indi¬ 
viduals; that a subsequent Legislature, at another 
time, annulled that grant by repealing the act 
which vested the title of the lands in the first 
grantors, and then otherwise disposed of the same 
land, under which other persons claimed the 
same property under the last grant of that State. 
It was insisted upon by one of the parties that the 
first grant by the said Legislature of Georgia was 
null and void, by reason of the bribery, influences, 

I &.C., in said second count mentioned. In other 
words, it was contended that the bribery, influ¬ 
ence, corruption, &c., of certain members of the 
said Georgia Legislature made the act of Assem¬ 
bly of that State theji in question void and of no 
eflect. I'he case was taken up to the Supreme 
Court of the United Slates for final hearing and 
decision. Chief Justice Marshall—one of the 
brightest luminaries of the law, and whose high 
character for legal knowledge and purity of pur¬ 
pose gave weight and authority to all he said—in 
delivering the opinion of the court, in page 130 
of the same Report, said: 

“It may be well doubted hov.' for the validity of a law 
depends upon the motives of its framers, and how far the 














7 


particular inducements operating on members of the su¬ 
preme sovereign power of a State, to tlie formation of a con¬ 
tract by that power, are examinable in a court of justice, 
if the principle be conceded, that an act of the supreme 
sovereign power miglit be declared null by a court, in con¬ 
sequence of tlie means which procure*! it, still would there 
be much difficulty in saying to what extent those means 
must be applied to produce this clfect. Must it be direct 
<*orruption, or would interest or undue inlluencc of any 
kind be sufficient.^ Must the vitiating cause operate on a 
majority, or on what number of the members ? Would the 
act be null, whatever might be the wish of the nation, or 
would its obligation or nullity depend upon the public sen¬ 
timent ? 

‘‘If the majority of the Le^slature be corrupted, it may 
well be doubted whether it be uithin the province of the judi¬ 
ciary to control their conduct; and if less than a majority act 
from impure motives, the principle by which judicial interfer¬ 
ence would be regulated is not clearly discerned. 

“ This is not a bill brought by the State of Georgia to 
annul the contract, nor does it appear to the court by this 
count that the State of Georgia is dissatisfied with the sale 
that has been made. The case, as made out iti the plead¬ 
ings, is simply this : One individual, who holds lands in 
the State of Georgia under a deed covenanting that the title 
of Georgia was m the grantor, brings an action of covenant 
upon this deed, and assigns, as a breach, that some of the 
members of the Legislature were induced to vote in favor 
of the law which constituted the contract, by being prom¬ 
ised an interest in it, and that, therefore, the act is a mere 
nullity. 

“ 7'his solemn question cannot be brought thus collaterally 
and incidentally before the court. It would be indecent in the 
extreme, upon a private contract between two individuals, to 
enter into an inquiry respecting the corruption of the sover¬ 
eign power of a State. If the title be plainly deduced from 
a legislative act, which the Legislature might constitutionally 
pass—if the act be clothed with all the requisite forms of a 
law, a court sitting as a court of law cannot sustain a suit 
brought by one individual against another, founded on the 
allegation that the act is a nullity in comsequence of the 
impure motives which influenced certain members of the Le¬ 
gislature which passed the law.” 

Here is a verjr plain intimation by our Supreme 
Court of the United States, that no bribery or cor¬ 
ruption of members of a LegislatuVe to effect the 
passage of a law would make such act void. Mr. 
Speaker, it is not for those who deny the right 
of this House to inquire into the legality of the 
election of the members of the Kansas Legisla¬ 
ture which passed the act under which the sitting 
member [General Whitfield] claims his seat, to 
produce a precedent or authority for such inquiry 
by us. We say that none such can be produced; 
and before we make so exceptional and illegal a 
precedent, to be followed by our successors, it is 
incumbent on those who affirm the right to be in 
this House to show their warrant before they ask 
us to follow them. Their position is affirmative— 
ours negative; and the burden of proof lies on 
them, and not on us who are denying it. 

It is conceded on all hands that we are sitting 
here in this case as a court of justice: if so, then 
we are bound by the rules that would regulate a 
court of justice. We are bound by the Taws of 
the land. We are bound by the forms and pro¬ 
ceedings of courts of law applicable to the case 
before us. We are bound by the rules and prin¬ 
ciples of evidence. We are bound by all that 
bind courts of justice—rules which all courts of 
justice have not failed to follow and obey—which 
they have found necessary for their own safety. 
The principles upon which these rules arc based 
are well known. They are in practice in all our 
courts. But now, if this report of the Committee 
of Elections be adopted, and the power to take out 
commissions for the examination of witnesses, 
and to send for persons and papers touching all 
matters, public records, statutes, the qualifications 
of the members of the Kansas Legislature, their 


election, &.c., we shall depart from the old land¬ 
marks, and the old and well-defined and traveled 
paths which all other judges have followed before 
us. We shall establish new rules of evidence 
never before known, and which it does not require 
apiophet to predict will not meet the approval or 
assent of coming generations. We are invited 
to reject all former precedents—to take testimony 
which, when taken, if we regard the law, we 
shall then be bound to reject as irrelevant and in¬ 
admissible. I, sir, am of the opinion that we 
have no right to take such evidence. To confer 
such a power would be a departure from former 
precedents, and the well-established rule of pro¬ 
ceeding in the cases of contesteiolections. 

But, Mr. Speaker, General Whitfield claims 
that the organic law passed by Congress was 
valid; that the act of the Kansas Legislature xvas 
also valid; and that he was duly elected unde.i 
that Kansas act. Governor Reeder says that the 
act under which Whitfield claims his election 
was null and void. Sir, I believe that this House 
has no right to set aside that act of the Kansas 
Legislature by evidence tending to show that the 
members constituting the Legislative Assembly 
were not duly elected. The members of the 
Assembly xvhich passed the act under which the 
election of General Whitfield was effected, were 
duly commissioned by Governor Reeder himself; 
and he himself, as Governor, recognized them as 
a regularly-constituted legislative body by send¬ 
ing his message to them. And we have no right 
to inquire whether they were duly elected or not, 
after Governor Reeder, the sole judge of the legal¬ 
ity of their election, had once passed upon it by 
duly commissioning officially the members of that 
body. All courts of justice would decide that the 
validity of the act must be admitted upon its face; 
it can only be tested as evidence by its inspection. 
We have no right, sitting as a court of law, to go 
beyond the act in an inquiry as to its validity. 
If the act comes to us clothed in legal form, duly 
authenticated, we can only then inquire whether 
it be inconsistent with the Constitution of the 
United States, or the organic law of Congress by 
which the Territory is established: here our in¬ 
quiries end. And if it be not contrary to any of 
the provisions of that Constitution, nor tliat or¬ 
ganic law, we are bound to decide, as all other 
of our courts would do, that the act is valid, and in 
full force and effect, and, like all other statutes 
enacted by the legally-constituted legislative au¬ 
thorities of our country, must be the law of the 
land when and where applicable. 

But Governor Reeder says that General Whit¬ 
field was not legally elected, and that he—Gov¬ 
ernor Reeder—is the duly elected Delegate for the 
Territory of Kansas. And upon what ground 
does he base that allegation ? He claims that he 
was elected by the people of the Territory, though 
he can produce no statute of Congress nor resolve 
of that body—no act of the Kansas Legislature 
nor resolve thereof, nor any other acknowledged 
legal authority or warrant, by virtue of which an 
election at which he claims to have been elected 
as a Delegate to Congress can be shown by him. 
He proposes to produce no warrant or author¬ 
ity recognized by our laws to establish the le¬ 
gality and validity of his election. In fact, it is 
well known that he has not even a pretense of 
an election, such as can only be recognized by 


\ 













8 


our Constitution and written laws, under which i 
we have so lonj^ lived and prospered. I 

Governor Reeder must show and prove before us j 
that the peo])le of Kansas had the right to assera -1 
ble when and where they did assemble when he | 
was elected, and that their Delegate, thus elected , 
Avithout even the color of law, is and was the only i 
true and legal representative of that people. j 

Governor Reeder can claim his election only in 
one way—as an election had and made by the 
sovereign people of the Territory, without law, 
without authority. He claims that those sover¬ 
eigns met together without any written law, stat¬ 
ute or common; in fact, that such election was 
had and held against law—both the organic law 
of the Territor)#)f Kansas and the act of Con¬ 
gress establishing that Territory. To make his 
election legal and valid, we must admit that the 
people of that Territory had the inherent right, : 
without any law of Congress or of the Territory, 
to hold and make such election; and if such be 
the fact, where Avas the necessity for the passage j 
of the organic law establishing the Territory.^, 
What Avas the necessity of establishing a Legis- j 
lative Assembly to enact laws for the people of j 
that Territory ? Why was it necessary to appoint' 
a Governor and other public officers, if the people | 
of the Territory had the right, without the au¬ 
thority or power of Congress, to do all or any of ; 
the acts which the organic law of that Territory 
duly empowered and enabled them to do? Gov- : 
ernor Reeder must shoAV that his election, thus 
held Avithout law, was valid, or he never can have 
a seat here. It is not enough for him to charge 
that General Whitfield is not elected; he must go 
further and show who Avas legally elected. 

Mr. Speaker, it is Avell known that many gen¬ 
tlemen thought that they could see, and did sec, 
in the Kansas and Nebraska act, a principle uni¬ 
versally condemned by all—that is, squatter sov- ■ 
oreignty. Matiy professed to be against the act 
on that ground alone; and, though I ne\'er ap-: 
proved of that act, I condemned it upon other, 
and, as I thought, stronger ground. If I had been | 
here at the time I should have given my vote ’ 
eigainst it, for reasons which I am not permitted 
at this time to state. The repeal of the Missouri 
compromise line, so long honored, enlisted my 
judgment and feelings against it. I will ask those ; 
gentlemen who saw squatter sovereignty in that , 
act, what do they see in Governor Reeder’s claim j 
to be the true and laAvful representative of squatter ; 
soA'creigns meeting together, perhaps under a big 
tree, or on a hill, or in a valley, and unanimously 
resolving that our (their) true and trusty friend. 
Governor Reeder, be, and he is hereby, declared 
to be the only true and lawful Delegate of and from 
this sovereignty, to represent our sovereignty in ! 
the Congress of the United States of America in i 
and for the Thirty-Fourth Congress? 

If it be the wish of this House to indorse the i 
doctrine of squatter sovereignty—if it be your 
object to give to it, odious as it is, the sanction 
of this branch of the National Legislature by the i 
admission of Governor Reeder to a seat here , 
under that claim—if you wish to give that doc-; 
<• trine your solemn approval—to give to it full force ! 
and effect throughout the length and breadth of 
the land—admit Governor Reeder as its first and ■ 
legal representative among us, who has no other 
nor higher claim to a seat here. Admit Governor i 


Reeder to a seat here under and by virtue of hia 
present claim as the lawful Delegate of Kansas, 
and you as effectually establish the doctrine of 
squatter sovereignty as could be done by the 
passage of an act of Congress entitled an act for 
the establishing and recognizing squatter sov¬ 
ereignty to the seat which he claims. [Laughter.] 
How does he claim his seat? He claims it by no 
law known to the tribunals of our country. He 
claims his right as built up and founded upon 
the principles of squatter sovereignty in its worst 
and most exceptionable features exclusively, and 
no other way. Men, claiming to be sovereigns 
without laAV and above law, met together, without 
law and without form,upon or near to the public 
lands—thus assembled in their sovereign capacity, 
and thus elect a Delegate to the Congress of the 
United States, without the form or color of any 
knoAvn law or usage of the good people of this 
country—by A'irtue of what? What else but 
squatter sovereignty ? [Great laughter.] I hope 1 
shall neA'er again hear, after the admission ofGov- 
ernor Reeder to his seat, of the odious doctrine of 
squatter soAxreignty as a principle established in 
or by the Kansas-Nebraska bill, when Ave have so 
reinarkable an instance of its popularity and puri¬ 
ty in the application now under consideration. 

Mr. Speaker, I approach this case and discuss 
it, and expect to give my vote upon it, Avithout 
prejudice or any party feeling AvhateA^er. I look 
at it as a question of right betv/een individuals, 
Avho are before us, the laAvful tribunal to determ¬ 
ine their rights and claims to a seat here. Are we 
bound to give the committee this extraordinary 
poAver Avhich they ask for—to send for persons 
and papers, to take depositions of all Avitnesses 
they may choqse to send for, to examine Avil- 
nesses upon all the questions arising in this case, 
to prove or invalidate the election of the members 
of the Kansas Legislature, Avhich has been adju¬ 
dicated by Governor Reeder himself, the only 
lawful judge of the matter? 

Should the committee or their commissioners 
have the authority or poAver to take evideno* 
Avhich is irrelevant—Avhich, if taken, could not be 
heard in CA'idence before us ? Shall they have the 
poAver or authority to examine Avitnesses, and take 
parol CA'idence of records, public laws, and other, 
and all other, Avritten evidences, Avhich can only 
speak for themseh'es? Can parol CA'idence be 
admitted in the exposition of a statute or other 
record ? If such testimony bo inadmissible, as 
all must admit, Avhy incur the expense, enormous 
as Ave knoAV it must be, if, Avhen taken, Ave are 
bound, as a court, to reject it? The commission¬ 
ers Avho may be authorized to take the deposi¬ 
tions may make, each of them, a considerable 
! fortune; but the mileage and attendance of the 
Avitnesses, from our extreme frontiers, Avill re¬ 
quire an immense sum of money to pay them, to 
say nothing of the expense of clerk hire and other 
charges always attending such proceedings, and 
will SAvell the Avhole bill of costs, as some gentlemen 
here say, to tAV'o hundred thousand dollars, leaving 
outaltogcther the mileage and |)cr diem of thetAVu 
Delegates from Kansas, Avhich, in every instance 
except one, has always been allowed and paid to 
both the contestant and sitting member. My hon¬ 
orable friend from South Carolina [Mr. Botck] 
has Avell said that no man can compute the cost 
and expense of such a commission. 











9 


If this were a case where the parties were liti¬ 
gating before us, and the loser had to pay the 
cost, then I should have less objection to inter¬ 
pose any objection to Governor Reeder having 
this resolution passed. But I do not feel myself 
authorized to vote for appropriations and the ex¬ 
penditure of large amounts of money for the pur¬ 
pose of testing the validity and power of squatter 
sovereignty. 

Governor Reeder, sir, appears on the record 
ns contesting the right of General Whi'theld to 
hold the seat of Delegate from Kansas Territory 
on this floor. Governor Reeder states, as it is 
admitted, that he gave due and written notice of 
his intent to contest the election of General Whit¬ 
field, as he was required to do by law. He also 
invited him to meet him at certain places to take 
testimony. He did this under the act of Con¬ 
gress, entitled “ An act to prescribe the mode of 
obtaining evidence in cases of contested elec¬ 
tions,” approved 19th of February, 1851. We 
have no other act of Congress on the subject of 
contested elections applicable to this case. If it 
does not apply to the cases of contested Dele¬ 
gate elections, then there is none which does. 
We have the authoi’ity of Governor Reeder him¬ 
self for saying that it is applicable to this case, 
because he proceeds under it to give the notice x*e- 
quired by it before he could become a party here. 
He gives notice to General Whitfield, but the 
latter refuses to take depositions, and comes here 
before this House resting his claim upon a legal 
election, held, according to the forms of the law, 
by officers duly sworn, who were all appointed 
by Governor Reeder himself, with a I’egular cer¬ 
tificate from the Governor of the Territory under 
the territorial seal. The House is asked, then, 
by the Committee of Elections for power to send 
for persons and papers, and to take depositions, 
which Governor Reeder, notwithstanding his 
notice to General Whitfield, wholly refused to do 
while the parties were in the Territory, and the 
witnesses and all asked for could have been easily 
had. There is an old homely proverb that— 

“ lie wlio won’t when he may, 

Wliea he would shall have nay.” 

Governor Reeder, under his aforesaid notice to 
General Whitfield, and the before-mentioned act 
of Congress, had the opportunity to take these 
depositions and examine witnesses, after giving 
such notice as before stated: he wholly^ refused 
and neglected so to do. With what justice, with 
w'hat propriety, can he come here now and ask 
that the Committee of Elections shall now take 
them, after his own neglect, and at so heavy an 
expense and cost, and send so great a distance for 
the witnesses to appear here in this city.^ Why 
shall this House order for him what he, under 
the act of Congress, had the right to do without 
our interference or sanction.^ Why should this 
House cover and excuse his neglect at such cost 
and expense as the committee recommend us to 
do ? We presume, that underthe act of Congress, 
in Delegate elections before referred to, the con¬ 
testants must give this notice. We presume, that 
by the words, “ members of the House of Represent¬ 
atives of the United States,” mentioned in the act, 
that Congress, in passing that act, did intend to, 
and does in fact, include and embrace Delegates 
of Territories, as well as other members of the 
House of Representatives of the United States. 


The title of the act is, “ An act to prescribe the 
mode of obtaining evidence in cases of contested 
elections.” The title of the act, then, includes 
both Delegates as well as other members. It is a 
general law. It requires that the contestant shall 
serve notice of his intention to contest the scat of 
the sitting member: it prescribes in what manner 
the evidence shall be taken. The contestant gave 
the notice, but the sitting member prefers to leave 
the case to the House; and now we are asked for 
authority, by the committee, “ to send for persons 
endpapers.” What for.? Is there any fact or 
reason sot forth by Governor Reeder or the com¬ 
mittee warranting such proceeding before us ? 
If Governor Reeder can show, or state any facts 
showing, that he himself is and was legally elected 
as the Delegate fi'om Kansas, by any known law 
of the United States or of the Legislature of 
j Kansas, which may and cas be proved by oral 
I evidence, I will cheerfully and willingly vote for 
I the power to take such depositions; they should 
i be admitted. If Governor Reeder proposes to 
i prove that General Whitfield, at the election when 
I he claims to have been elected under the act of 
; the Kansas Legislature, received a less and shorter 
vote than his competitor at that election who ran 
against him—if Governor Reeder proposes to 
prove that General Whitfield was elected by illegal 
votes cast for him, which, if stricken out, that 
then he [Governor Reeder] is elected, and thus 
claims his seat—if Governor Reeder can show by 
witnesses or records that he who stands as plain¬ 
tiff here can be entitled to his seat by striking 
from the poll every vo^ which General Whitfield 
received, both legal afro illegal—I will give my 
vote for vesting in the committee that power. If 
you strike out every vote for General Whitfield— 
leave him not one—he then would stand just as 
I does Governor Reeder now. 

The truth, is that Governor Reeder and General 
i Whitfield never were the opposing candidates. 

I Governor Reeder did not receive one single vote 
at the election when and where General Whitfield 
claims to have been elected. The two elections 
of the contestant and the sitting member were held 
on different days and at difierent times. General 
Whitfield was not a candidate at the election under 
which Governor Reeder claims his seat. Gov¬ 
ernor Reeder does not state the number of illegal 
votes, or how they were illegal; he gives neither 
names nor numbers. He takes a general excep¬ 
tion to the voters for General Whitfield by hun¬ 
dreds: this is too general to be noticed. The 
I act of Congress before referred to requires the 
greatest particularity insetting out the objections 
of a contestant to the votes for the sitting mem¬ 
ber. Governor Reeder has not followed that act 
in that particular. The object of a notice, as 
required by the act of Congress, is to give the 
opposing party information of all and every of 
the particulars of the matters in dispute between 
the parties. Let any gentleman read Governor 
Reeder’s notice to General Whitfield. Does he 
in that notice specify the votes which were illegal 
—how they, or any of them, were illegal. When 
the notice is given to the sitting member, the par¬ 
ticular objections which he (Governor Reeder,) 
intended to prove, to vacate the seat of General 
Whitfield, the act makes it the incumbent duty 
of the sitting member to answer such notice and 
the particulars stated, admitting or denying the 




















10 


facts alleged therein, and stating specifically any 
other grounds upon which he rests the validity 
of his election; and that he (the sitting member) 
shall serve a copy of such, his answer, upon the 
contestant. 

Now take Governor Reeder’s statement, “ that 
many persons, not citizens of Kansas, were ad¬ 
mitted to vote.” He does not state who they 
were, how not citizens, where they came from, I 
or anything at all further about them, beyond 
the general fact that many such persons voted. 
We know from the record that Governor Reeder 
appointed the individuals who were sworn to ex¬ 
ecute their duties, as judges of that election, faith¬ 
fully, under the act. It is not alleged that those 
judges did not do their duty; that they or any of 
them were guilty of fraud or corruption, all of 
whom were Governor Reeder’s appointees, and 
who must be presumed, in the absence of proof j 
to the contrary, to have done their duty. There 
is no charge that those judges, or either of them, 
acted corruptly or unfairly, or that any of them 
corruptly received any illegal votes. 

We are asked for the power to take deposi¬ 
tions, examine witnesses, send for persons and 
papers, to collect and afford evidence u,pon facts, 
iiot one of which, if such can be produced, would 
in any manner tend to show or prove that Gov¬ 
ernor Reeder is, or was, the legal Delegate from 
Kansas. 

The great objection is, that such evidence, as 
before stated, could not establish the right of 
Governor Reeder to a seat here.; and if he can j 
.show no right to a seat,||vhy should the prima 
facie right of the sitting iiTCmber be disturbed by 
a mere stranger and intruder.^ Why, let me j 
again ask, shall the committee send for persons i 
and papers, which, when produced, cannot, ac -1 
cording to Governar Reeder’s own showing, give | 
him a title to a seat here? For what end, then, j 
shall all this costand expense be incurred to prove i 
facts, none of which will or can establish any legal i 
right in the contestant himself, or show that any | 
wrong or injury has been done him. When the 
people of Kansas, or at least some of them, shall | 
complain by memorial or otherwise to this House 
that General Whitfield was not elected by the 
eonstituency whom he represents here, then it | 
will be time enough for us to investigate all the i 
charges in such memorial, and determine whether 
or not, he (General Whitfield) is the rightful 
Delegate of that Territory or not. In the absence ! 
of such complaint, the prima facie right of the i 
present incumbent should satisfy us without j 
further proof. 

Governor Reeder himself, it is plain, cannot ' 
have any claim to a seat in this House, unless j 
this House are disposed to admit the doctrine of 
squatter sovereignty. He builds his claim upon 
nothing else. If he could show that in the elec-' 
tion which took place in Kansas subsequent to ' 
the passage of the territorial act, that General 
Whitfield was not elected by reason of any fraud 
or illegal voting to such an extent as to reduce 
the vote of General Whitfield* below that of the 
only individual who received any votes when 
General Whitfield claims his election, such facts j 
would prove that somebody else was elected who I 
is not before us—does not claim to have been j 
elected; and upon the application of that person, 
or upon complaint of the people of Kansas that 1 


General Whitfield was not elected, and is now a 
usurper, in such cases, it would be proper and 
competent that evidence thereto should be admit¬ 
ted for the purpose of ejecting such usurper. But 
Governor Reeder does not say, nor even pretend, 
that a number of illegal votes were cast for Gen¬ 
eral Whitfield, which, if stricken out, would 
.show that he himself or any other person was 
duly elected. On the contrary, according to the 
facts of this case, strike out every vote given for 
General Whitfield, and Governor Reeder \yill 
then be no nearer to an election. He has still, 
after rejecting all the votes for General Whitfield, 
to resort-to his doctrine of squatter sovereignty 
for success. He cannot claim an election in any 
other fdrm or way whatever; he cannot be other¬ 
wise elected. I do not then see the propriety of 
the examination which is asked for, with all its 
cost upon the Treasury, which will establish no 
right—which will settle no claim, other than the 
one now raised as to the force, effect, and valid¬ 
ity of squatter sovei'eignty. 

The meaning of the act of Congress would 
seem to be this, that a person who considers him¬ 
self aggrieved by the result of an election has a 
right to contest the seat of a sitting member which 
he, the contestant, alleges is illegally withheld 
from him. There are before us but two persons 
— the one claiming the seat, and the other objecting 
to that claim. We have no memorial from Kan¬ 
sas; and no persons complain that General Whit¬ 
field is an intruder or usurper. The people of 
that Territory are wholly quiescent. They make 
no complaint—send us no memorial or petition. 
They make no objections. They are silent spec¬ 
tators of the scene. Here is a private right; 
and the question raised involves only the de¬ 
termination of a private right and title between 
Governor Reeder on the one side, and General 
Whitfield on the other. Now, if it be shown 
before this House that Governor Reeder has no 
right to this seat, and that he is not elected, upon 
what principle can he be permitted to contest the 
claim of the sitting member ? It is a well-known 
principle, governing courts of law, in which 
capacity we are now acting, that whenever it is 
shown that the plaintiff in the case has no right 
to the subject of litigation, no right to the matter 
to be tried and litigated, then the case ends as to 
him. He having no interest or right in the matter 
sued for, the suit is at once dismissed, the plain¬ 
tiff is nonsuited, and that ends the case. Now, 
Governor Reeder is the plaintiff here before us; 
he must show his right fair before a defendant 
is called upon to make his defense. The law 
requires that the plaintiff should have this inter¬ 
est before he can call upon a defendant to show 
his title. The prima facie title of the incumbent is 
sufficient as against a wrong-doer. Heisnotbound 
to go further than npnma facie show. And such 
was and is the meaning and intent of this act of 
Congress before referred to—that he who claims 
the seat should and must have the right, or at 
least a probable claim, to it himself. The pro¬ 
ceedings in contested elections directed to be h.ad 
and taken in that act, and only in such cases, are 
authorized to be taken and had by this House, 
the sole constitutional judges of the elections of 
its own members, to decide and determine the 
rights between contesting claimants, when both 
claim the right to the contested scat, and when 



















11 


the failure of the one claimant would necessarily 
establish the right of the other; and not in cases 
when the ri;jht of the one is founded on known 
laws of binding force, and the other upon squatter 
sovereignty—a sovereignty which never has been, 
and it is to be hoped never will be, admitted under 
a Government of written laws like our own. 

Mr. Speaker, it is palpable—too plain for argu¬ 
ment—that Governor Reeder has no right, that 
tlie Committee of Elections have no right, to ask 
us to issue this commission, to confer this power, 
to incur so much cost and expense, to examine 
witnesses to prove that General Whitfield has no 
right to his seat. Governor Reeder ought to have 
some interest in this case in himself; he ought to 
show some plausible pretext, at least, of a right 1 
in himself; he should show some sort of an elec- ! 
tion by the people of Kansas, known to our writ- ^ 
ten laws and Constitution, before we can be jus- ^ 
tified in expending thousands and thousands of 
dollars of the money of our people, which, after 
all, will only prove what wo all now know, and 
which can confer upon Governor Reeder no ben¬ 
efit or advantage whatever. 

Mr. Speaker, in every view which I have been 
able to take of this case, it seems to me that this 
power ought not to be conferred upon the com- 1 
mittee. If there are any facts in this case which jj 
go to show that Reeder himself is legally elected j; 
under, or by virtue of, any written or printed ji 
laws of KansKs or of Congress, let a commission t 
issue. I, for one, will so vote. If it is pro- 
loosed to show, by legal and competent evidence, jj 
tliat General Whitfield was not elected, and that 1; 
some other person, now claiming his seat, was j! 
legally elected, then the commission should go, ij 
and I will vote for it. But I do not think it ought ! 
to be issued upon the application of a mere stran¬ 
ger, who has no title or right in himself—one 
who has no legal interest in the result, and who, 
upon his own show, is not a party having any in- | 
terest in this inquiry, and who could not be bene- j 
fited by vacating the seat of the sitting member. ; 
If General Whitfield were, by a vote of this : 
House, ousted, who would, by his vote here, say | 
that Governor Reeder is the lawful and rightful ; 
Delegate of Kansas—that his election, based upon 
unwritten laws not known to our people, and 
now, for the very first time, attempted to be im- 
[)Osed upon and practiced in a civilized commu¬ 
nity, among peaceful law-abiding citizens, shall 
prevail ? 

Take another view of this case. Grant the | 
commission; give the commissioners power to go 
to Kansas to examine witnesses; how long will it 
take them ? If Reeder can prolong this contest 
until the termination of this present Congress, is 
he the loser ? Not a farthing. Has it not been ' 
the universal practice of this House, in all and 
every of the contested cases before them, with ; 
but one solitary exception, to pay both the claim¬ 
ants, and to pay both to the sitting member and 
liis contestant full allowance, both in mileage and 
per diem allowance, from the commencement of 
the session up to the day of final decision by the 
House? There may have been one exception, 
but it is only one—it stands solitary and alone. 
The general practice is as 1 have stated, as gen- j, 
tlcmea all here inform me. If, then, tliis case | 
can be put ofi’under pretense of taking this testi-1 
mony, or sending to Kansas, Missouri, and other [ 


places for witnesses, papers, &c., Reeder will be 
well paid for his trouble, travel, &c. 

Another fact which had nearly escaped my 
recollection is relied upon by Governor Reeder to 
invalidate the act of the Kansas Legislature. It is 
this: that he, then being the Governor of that 
Territory, was authorized and empowered to de¬ 
termine and fix the place where and the time when 
the Legislature of that Territory, after their first 
election, should first convene. This right was 
vested in him, then being the Governor, by the 
act of Congress enacting the territorial form of 
government; and under that act, as such Gov¬ 
ernor, he had the right, after the election of the 
members of the Territorial Legislature, to convene 
them when and where, within that Territory, he 
might choose and select. Governor Reeder did 
in due form, by his proclamation, convene them 
at a place called Pawnee City, where the Legisla¬ 
ture first met. The words of the act gave him the 
power to “convene” the Legislature; he did so. 
The act did not require the Legislature to hold 
their first or any other session where convened by 
the Governor. They were to be convened there. 
No words in the act gave to the Governor any 
further or other power as to the session of the 
Legislature at anyplace, other than that the Gov¬ 
ernor should convene them at such place as he 
might select. When the Legislature assembled at 
Pawnee City, they found that there were no build¬ 
ings to be had by them for their sessions. In fact 
there was but one or two log buildings there, and 
none of any other kind. They found that they 
could not be accommodated at that place; that the 
Asiatic cholera was prevalent in the neighborhood 
where convened. They duly met and convened 
in the place as ordered by the Governor; they 
organized, chose their officers, and then passed 
an act, wlien thei*e convened, authorizing'the Le¬ 
gislature to meet at another place called Shawnee 
Mission. 

Governor Reeder vetoed that act, as by the act 
of Congress establishing the Territory he had 
the right to do. After the receipt of the Gov¬ 
ernor’s message placing his veto upon the last- 
mentioned act of the Legislature, the same act 
was again passed by a two-third vote against the 
veto, and thus became the law of the land; and 
Governor Reeder now objects to the validity of 
that act of the Kansas Legislature under which 
General Whitfield claims to be elected, because 
that act was not passed at Pawnee City, where they 
were first convened, but at another place to which 
the Legislature had adjourned. Would such an 
act of the Legislature of a Territory, assembled 
by legal authority at one place where the Gov¬ 
ernor had convened them, having, by their or¬ 
ganic law, the power to legislate—to pass laws 
for the Territory, prohibit such Legislature from 
selecting some other place within the Territory, 
and there doing the business of legislating? Is 
there anything restraining in the words, “ the 
Governor shall convene the Legislature at such 
place as he may select,” to prevent such Legis¬ 
lature from changing the place of their meeting 
to some other place which, in their judgment, 
was more convenient and proper, especially when 
sickness, the want of a house or houses in which 
to meet, the inconvenience of getting board or 
lodgings, impelled them to make the change? 
In other words, in the case of necessity, as was 























this case, lias not a legislative body within itself 
the inlierent power, unless restrained in the or¬ 
ganic law under which they are called and elected, 
to adjourn to another day and to another place? 
Has not a legislative body the power in the words, 
“ 'power to legistate,” the right to do all acts ncces-! 
sary to effect legislation ? Do not the w'ords in the ! 
orgaiiiciaw, “power to legislate,” give the power, I 
after convening, to adjourn to another jdace ? j 
When no ]')lace is taxed for the holding of the j 
liOgislature in the constitution of the State, it has i 
always been the universal practice of the Legis¬ 
lature to change and alter the times and places 
of their meeting. Most, if not all, the State Legis¬ 
latures, whose capital has not been located by the 
constitution of the State, have,from time to time, 
changed the place of their meeting. Indeed, we 
know of one instance in which the Legislature of 
the State of Georgia, in the time of the war of the 
American Revolution, held their session in the 
State of North Carolina. It never was questioned 
that the legislation thus passed in North Caro¬ 
lina was null, void, or of no effect. 

it is to be remembered that it appears, from 
the record of the legislative body of Kansas re¬ 
ferred to in the report of the committee, after 
such removal of the seat of government from the 
place where fiist convened by Governor Reeder, 
that Governor Reeder, after such removal and 
change of place, by repeated messages to that j 
Legislature, recognized them as the only true and j 
legitimate legislative body of Kansas. How can j 
he now say, after his official acknowledgment j 
of their existence, that they were no legislative [ 
body—mere usurpers and intruders? Is he not I 
now estopped from denying his own official and | 
solemn acts—acts done and performed by him ' 
under the sanction of an oath? Which shall! 
we believe, Governor Reeder, acting officially as 
Governor of the Territory, under the sanction 
and binding force of an oath, or the Hon. An¬ 
drew H. Reeder, contestant for a seat as Delegate 
from Kansas, without oath, and having a pecu¬ 
niary interest to unseat his successful rival? It 
W'ould be but fair to say, that Governor Reeder 
acting under his high responsibility as Governor, 
without interest to swerve or move him from the 
path of duty, is better authority that Mr. A. H. 
Reeder, the petitioner for a seat on this floor. 
But supposing the change of one place by the 
Legislature when they were convened vacates or 
annuls the act of that Legislature now in ques¬ 
tion, I will, then, ask whether such change of 
place and removal of the legislative body does not 
appear from their public laws and records? Do 
not the laws passed by them after their removal, 
upon their very face, show the place where and 
tlie time when passed ? Look at the statutes of 
that Territory in our Library: the place of pass¬ 
ing, and the time when passed, both appear upon 
every one of them. The place where passed is, 
tlien, a matter of record, appearing upon the stat¬ 
ute-book. How, then, can witnesses be exam¬ 
ined, parol evidence admitted, to prove a public 
record, which speaks for itself, and needs no 
other nor further proof? Why should the Com¬ 
mittee of Elections have conferred upon them or 
their commissioners all this extraordinary power 
to send for persons and papers to prove what 
your very records show and prove without any 
expense, cost, or trouble, further than to send 


I 


one of our little pages to the Librarian of the 
House Library to produce it? No good, Mr. 
Speaker, can result from such a commission as 
is proposed to examine witnesses, to send for 
persons and papers, at such an immense cost as 
we know will ensue. 

Mr. Speaker, I will venture to assert that, if 
this House will pass a resolution that, in the 
trial of tills contested election, either party may 
take out a commission, giving him or the^n full 
power and authority to send for persons and 
papers, as they or either of them may determine, 
subject to this proviso, that the unsuccessful 
party—he who fails to get the seat, shall pay all 
the costs of witnesses, papers, commissioners, 
&.C.— that under such a resolution, with such a 
proviso. Governor Reeder will act as he did, after 
serving General Whitfield with notice of his 
intent to contest his seat, that he would take 
depositions, &c. No, sir, he never would take 
out the commission under such a proviso. If he 
will, I will agree to vote for the authority and 
power asked for. Does any gentleman here 
believe that Governor Reeder, if his case were 
placed before us as a plaintift’ in a court of law, 
and he wms bound to show a rightful claim and 
title to the seat which he now claims, upon the 
pain and penalty of all other plaintifls, of a judg¬ 
ment against him for all costs of suit in this case, 
would ever again trouble us, or the nation, with a 
further hearing. No, he would suffera 'nonpros, at 
bar, or enter a discontinuance of his claim. Then, 
sir, in a case w'here a citizen would not prosecute 
his claim under a well-founded doulit as to his 
right and title to the matter in controversy—in 
such a case as that I cannot feel mysej4’, as one 
of the R,epresentatives of the people of my native 
State, justified in voting away thousands of dol¬ 
lars out of the public Treasury to determine a 
matter in which the complaining party is not 
willing to risk the danger of a judgment against 
him for costs upon the rendition of a verdict 
against him. I submit the case to the judgment 
of the House, tendering to them my hearty thanks 
for their patience with and attention to me. I 
have no fears of the result of the vote of the 
House. 


Notice to silting Delegate. 
j To lion. J. W. WiiiTFiET.i): 

Sir : PlcuFic take notice that I shall contest your right to 
I a seat in tlie next Congress of the United States, as con- 
I greesional Delegate of the Territory of Kansas; and that the 
depositions of witnesses to prove the invalidity of the law 
under wliich your alleged election took place, and the ille- 
gtUity of v'otes cast for you on the 1st day of October in- 
.stant, will betaken at the following times and places, before 
.sonic judge, justice, or competent person ; at which times 
and places you may attend, if you think proper, to cross- 
examine : 

On the 5th, 6th, and 7th of Noveinbcr next, at the house 
of E. C. K. Garvey, in the, town of'J’opeka. 

On the 8th of November next, at the American Hotel, in 
the town of Kansas. State of .'lissonri. 

On the tUh, 10th, and l;2th iif November next, at the office 
of S. N. Simpson, in the town of Lawrence. 

On the Idth and 14th of November next, at the house of 
Henry Hollcnberg, on the Vennihon branch of lllne river. 

On the latii of November next, at tlie house of VV. W. 
Moore, in Mooresburg. 

On the 16th and 17th of November next, at the old Hos¬ 
pital hnilding at Fort Scott. 

On the 19tli and ‘JOtli of November next, at the house of 
James Hughes, in tlie town of Osawaltomie. 

On the :23d of N ovember next, at the house of Loian 
Smith, in Council City. 
















13 


On the 23(1, 24th, and 25i,h of November next, at tlie 
office of William i’hillipf:, in lioavctiwortli City. 

All which said places, except the town of Kansas, arc in 
tile "J’erritory ()f Kansas, and the time of commencin!! at 
each place will he ten o’clock, a. m.; and if it is found im ji 
practicable to take such depositions at the houses named, ] 
they will be adjourned, with notice at the time, to a more i 
convenient place. 

Any other notices which you may receive for the same 
imrposes, signed by <J. P. Lowry, Estp, ii. Coates, lisq., 
.M. J. Parrott, Esq., or (4. \Y. Prown, Esq., on my behalf, 
will bo authorized by me. A. H. IlEEDEU. 

Kansas Teruitory, October lf>, 1855. 

Answer of sitting Delegate to notice. 

That notice was given on the 16th of October. The next 
day (the 17th) General Wiiitiield made this reply: 

To A. II. Reeder, Ilsip : 

Sir: I am in receipt of a paper bearing your signature, ' 
dated 16th instant, in which I am requested to take notice 
that yon will contest my right to a seat in the next Congress 
of the United States, as congressional Delegate of the Ter¬ 
ritory of Kansa;s, and that the depo.sitions of vvitne.sses to 
prove the invalidity of the law under which my election 
took place, and the illegality of votes cast for me on the 
1st day of October instant, will be taken at certain times 
and places, and before certain legal functionaries in the 
said paper particularly specilied. 1 am also invited to be ' 
present at these times .and places to cross-examine the wit¬ 
nesses ; and am further notified that other notices which f 
may receive for the same purposes, signed by G. P. Lowry, 
Esq., 11. Coates, Esq., AI, J. Parrott, Esq., orG. IVh ilrowm, 
Esq., on your behalf, will be acknowledged by you. 

'I’he first remark that 1 shall make in reference to tliis 
most singular notification is, that, inasmuch as you have 
left the Territory, and have designated no place at which 
you can be addressed, and inasmuch as the subject-matter 
L of public rather tlian of private concernment, f deem it 
pr.oper to reply through the medium of the public press. 

1 observe that, while you declare an intention of contest¬ 
ing my right to a seat in the Congres.s of the United State.", 
you speeix’y no ground upon which to entitle yourself to 
enter into such a controversy. By the plainest principles 
of common sense and common law, the man who seek.s to 
dnig another before the tribunals of the country is bound to 
filiow that he has a right to be asserted or a'wrong to be 
itMressed. In lha absence of such idiowing, he lias no 
right to put any man upon the defensive, nor to invoke the 
in.striimentality of the law'. You have not alleged that any 
rights of yours have been infringed by my election, and 
consequently, by your own .show'ing, you are jirecluded 
from making yourself a party to such a contest as that in 
whicii you seek to engage. 

The idea of running ail over the Territory for the purpose 
of collecting testimony to prove “ the invalidity of the law” 
under wdiicli 1. was elected is absurd, and betrays a shameful 
ignorance of the institutions under which we live. In this 
country, the validity of laws is determined by courts of 
competent jurisdiction, created for the purpose, and not by 
the oaths of vvi.ne.sses, how'ever numerous, intelligent, or 
fiuthl'ul. The same remarks are applicable to the project 
of proving, by oral testimont-, the illegality of votes cast for 
me on the 1st day of October instant. The legality or ille¬ 
gality of votes is a matter of legal deduction, to be draw'n 
from the facts of the particular case, and not itself a fact 
susceptible of being establi.shed by any kind of testimony. 
I’or these, and other reasons which might be assigned, you 
will readilv perceive that I refuse to recognize you as having 
any rights'in the premises, and decline glviiig attention to 
the subject matter of your notification. 

If an inconsistency, coming from such a quarter, wmre 
worthy of remark, 1* w'ould advert to your proposition to 
takcde()Ositioin before some judge, justice, or other com- 
pc.leiit person merely observing that, in this Territory, 
uuch officers are the creatures of th.at law whose validity 
you deny. 

But though you have forborne to assign any valid reason 
fiir impugning my election, 1 am not, therefore, ignorant of 
the liopes and purposes by which you ajid your confederates 
arc actuated. VV^heri 3 'oucame into this Territory, iu.«tead 
of devoting your energies, in good faith, to the discharge of 
your official duties, and to preiiaring the w-ay for the intro¬ 
duction of hiws adapted to the condition of society, your 
whole, time was occupied in fraudulent devices for enrich¬ 
ing your.-xdf, and for so shaping the internal legislation of 
the country, as to secure a preponderance to your owm Abo¬ 
lition and Free-Soil party. Some of your pecul.ations were 
io <rrossly iurmoral and illegal, that it became my duty to 


denounce them in the proper fpiarter, and for them you wt're 
eventually removed from office. For this denuiiciation you 
became my bitter personal enemy, and this is one cause of 
your impotent effort to have my electioii annulled. 

After many months ol'needless anarciiyand confusion in 
the Territory, you at lengtl) yielded to tlie importunities of 
the people for the election of a Legislative A.sscmbly, and 
issued your proclamation for that purpose, and thought that 
you had taken measures for having an overwhelming m;i- 
I jority ol your political allies on the ground. Butin this you 
j wore d(;stined to disappointment; and of the thirty-nine 
j members composing the two IIousos of the JiCgislature, 
thirt.v-eight were your political opponents. This body you 
I convened at the remote town-site (for towm it wms ink) of 
j Bawnee, in order that, by making it the temporary seat of- 
government, and by the expenditure of public money there, 
you might be further enriched as one of the owners of that 
locality. The place being destitute of houses of all kinds, 
even of rooms in which to deliberate, and of all the neces¬ 
saries—to saj' nothing of the comforts of life—the A.ssem- 
bly, at an early day, adjourned to a place wher;; the wants 
of its membiu's could be better sup|)lied. I’iiis removal, so 
imperatively called for by circumstance.s, and so fully au¬ 
thorized by numerous precedent",you have chosen to make 
the pret(ixt upon which to invalidate the whole code of 
law's enacted by that body ; so that.if j'our counsels should 
prcv.ail, the people of the Territory would be as much with¬ 
out the protection of law' to-day :i3 they wore a year ago, 
when you first came among them. 

Being thus foiled in all your undertaking?, di.sappointcd 
in some of your mo."t hopeful prospects of gain, defeated in 
your hopes of having a liCgislature subservient to your 
view.", and the sword of justice, long su.spendcd over you, 

I having at length fallen, you moodily retired for the concoc¬ 
tion of new mischief. You are fir.st seen in conclave with 
the most rabid Abolitionists of the Territory, putting forth 
' doctrines subv'crsive of all bnv and good government, de- 
I nouncing the acts of the Legislative A.sscml)ly, though that 
i body w'as elected in punsuance of your own pToclankition, 

I and the member.s bore your certificate of election, as void 
1 and of no binding force, and pledging j'ourselves to a united 
! re.sistance. Asa part of the disorganizing sciicmes adopted, 
i and doulnless suggested by you, a mock electioti was de- 
! termined to be held, on the 9th instant, for a Delegate to 
! Congres.", notwithstanding that the 1st of the montli was 
the (lay legally prescribed for that purpose. At such a pre- 
tendcfi election, held not only without color of law, but in 
open violation of law', you came forward as a candidate, 
and I suppose some w'eak-minded and evil disposed per¬ 
sons may have voted for you. How many, 1 am not con¬ 
cerned to know, for no numbers could impart validity to a 
I proceeding so lawless and disorganizing. And it is with a 
! list of votes tliu.s obtained, taken and certified to by judges 
I bound by no oaths, and recognizing no law' for their gov- 
I eminent—votes given by person." of no defined qualifica- 
I tions, and restrained by none of the penalties which attach 
to illegal or fraudulent voting, that you will ajiply to the 
House of Representatives to vacate my seat, in order to 
make room for you. For carrying nut .so monstrous a pur¬ 
pose, you calculate largely upon the political complexion 
of that body, (a portion of w'hich is known to be infected 
w'itli the most loathsome heresies of the times.) 

I confidently predict that you are again reckoning w'ith- 
out your host, and believe that the House of Rejiresenta- 
tives will regard the mere supposition that it could lend 
itself to so revolutionary and high-handed a proceeding, as 
a libel upon its character, promptly to be resented. You 
may succeed in engendering ill-feeling in the halls of Con¬ 
gress. and in gaining for yourself a sort of notoriety W'hich, 
however unenviable, you seem to prefer to the ob.-curity 
which befits you ; but other advantages j'ou will not obtain. 
In the mean time, j'ou may enjoy the ignoble satisliiction 
of having introduced and fomented an amount of discordant 
feeling and insubordination to law in this Territory, w'hich 
itw'ill reciuirOjthe labors ol’many b.^iter men to repress, and 
from whicii your mi."gui(ied dupes and follow'crs have ( very- 
thing to fear. For 1 speak not the language of tlircat and 
br.avado, but of sober rea.«on, w'hen 1 say to you, that the 
1 pt'ople of this Territory are determined t(> have laws and to 
enforce them, whatever may be the hazards or the sacri¬ 
fices. 

I submitted my name as a candidate, and received the 
votes of the law-abiding portion of the people, in conform¬ 
ity to an enactment of the Legislative Assembly of the Ter¬ 
ritory. If there wa.s anything in the con.stitution or conduct 
of that body caleiulateii to invalidate its acts, it will be time 
for me to refuse obedience when a court of competent 
jurisdiction shall have so declared. 

I abjure, as revolutionary and destructive of all social 


















T 


14 


order, the individual to set up his private judgment in op¬ 
position to constituted authority. 

As an American citizen, I hold it to be my duty to yield 
obedience to the laws under which I live, and to contribute 
my aid tow'ards enforcing the obedience of others ; and this 
without reference to my individual opinion respecting their 
moral force or political expediency. It is precisely because 
you are swayed by opposite sentiments that you now seek 
to embroil me in a harassing controversy. 

In conclusion, I will only further say, that this brief ex- 
jKtsition is not given as due to you, but to the end that the [ 


attention of the American people, and of that House of 
Representatives to which you intend to appeal, may be 
directed to the true nature and grounds of the strife you 
seek to provoke. And though I shall pay no regard to your 
preliminary movements, yet you will fmd that I shrink from 
no investigation, however searching. If the House of Repre¬ 
sentatives shall so far forget its seif-respect and its regard 
for patriotic duty as to order a scrutiny upon such showing 
as you will be able to make, you will find me prompt in the 
defense of my own rights and those of my constituents. 

J. W. WHITFIELD. 


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